Jiricko v. Frankenburg Jensen Law Firm

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 22, 2019
• Docket: 18-4066
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 22, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court DR. MILOS JIRICKO,

Plaintiff - Appellant,

v. No. 18-4066 (D.C. No. 2:16-CV-00132-DB) FRANKENBURG JENSEN LAW FIRM; (D. Utah) CAROLYN STEVENS JENSEN, lawyer; JENNIFER BRENNAN, lawyer; KEITH KELLY, State Judge in his official and personal capacity; HEATHER BRERETON, Judge in her official and personal capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and O’BRIEN, Circuit Judges. _________________________________

Dr. Milos Jiricko, appearing pro se, appeals from the dismissal of his

complaint asserting federal and state-law claims against opposing counsel and two

judges who were involved in his unsuccessful personal injury suit brought in Utah

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. state court. He also appeals from the denial of his motion to reopen the judgment

under Fed. R. Civ. P. 59 and 60(b). We affirm.1

BACKGROUND

In October 2013, Jiricko, appearing pro se, filed suit in Utah state court against an

ophthalmologist and the doctor’s employer for personal injuries he claimed to have

suffered as a result of a surgical procedure (“State Court Suit”). Carolyn Stevens Jensen

and Jennifer M. Brennan and their law firm, Frankenburg Jensen, (collectively “the

Frankenburg Defendants”) represented the medical defendants in the suit. Judge Keith

Kelly and later Judge Heather Brereton (collectively “the Judicial Defendants”) presided

over the case. Accepting the Frankenburg Defendants’ arguments on behalf of their

clients, Judge Kelly decided the Utah Health Care Malpractice Act, Utah Code Ann.

§§ 78B-3-401 to 78B-3-426 (“the Act”), and its requirements applied to Jiricko’s claims.

Judge Brereton subsequently dismissed Jiricko’s suit as a result of his failure to designate

a qualified expert witness as required by the Act. The Utah Court of Appeals affirmed.

While his State Court Suit appeal was pending, Jiricko filed this action against the

Frankenburg and Judicial Defendants, alleging they had conspired to deprive him of his

constitutional rights and otherwise harm him by applying the Act to his claims. He

further alleged the Act was unconstitutional on its face and as applied in the State Court

Suit, and asserted claims against the Defendants under 42 U.S.C. § 1983 and state law.

1 Our jurisdiction derives from 28 U.S.C. § 1291. 2 He sought damages, a judgment declaring the Act to be unconstitutional, and an

injunction barring its application to his claims in the State Court Suit.

Both sets of defendants filed motions to dismiss the claims. The district judge

referred the motions to a magistrate judge, who recommended: 1) the claims against the

Judicial Defendants be dismissed on judicial immunity and other grounds, and 2) the

§ 1983 claims against the Frankenburg Defendants be dismissed because they were not

state actors and the state-law claims against them (except the claim of fraud on the state

court) be dismissed since those claims were barred by Utah’s judicial-proceedings

privilege. The district judge adopted the magistrate’s recommendations over Jiricko’s

objections.

In response, Jiricko filed a petition for a writ of mandamus in this court, seeking to

disqualify the district and magistrate judges for failing to decide what he deemed to be

the central issue in this action–his challenges to the constitutionality of the Act. In his

mandamus petition, he also asked this court to decide the constitutional issues.

Exercising jurisdiction under 28 U.S.C. § 1651(a), we denied his petition. See In re

Jiricko, No. 17-4094, slip op. at 4 (10th Cir. June 26, 2017) (unpublished order).

Meanwhile, the Frankenburg Defendants moved for summary judgment on the

only remaining claim, fraud on the state court. The magistrate recommended a summary

judgment dismissing the state law claim because the district court lacked jurisdiction to

decide it and, in any event, should decline to exercise supplemental jurisdiction. Jiricko

did not file objections within fourteen days of this recommendation as required or seek an

extension to do so, but he did file objections approximately two weeks after the deadline.

3 The district judge nevertheless considered the untimely objections, adopted the

magistrate’s recommendation, dismissed the fraud on the state court claim for lack of

jurisdiction, and entered judgment dismissing this action.2 He also denied Jiricko’s

motion to reopen the judgment under Fed. R. Civ. P. 59 and 60(b). This appeal followed.

DISCUSSION

A. Utah Health Care Malpractice Act

Though Jiricko raises a number of issues on appeal, his primary argument relates

to the dismissal of his case without deciding whether the Utah Health Care Malpractice

Act is unconstitutional on its face or as applied by the Judicial Defendants in the State

Court. Jiricko is mistaken in assuming a decision on these issues is necessary simply

because he asserted § 1983 and state-law claims. As we informed him in denying his

petition for mandamus, the failure of the judges to rule on the constitutionality of the Act

at that point in the case was “the natural consequence of rulings based on other

dispositive deficiencies in his claims.” In re Jiricko, No. 17-4094, slip op. at 3. The

immunity, privilege and other grounds on which the district court had dismissed Jiricko’s

claims against the Judicial Defendants and most of his claims against the Frankenburg

Defendants made it unnecessary for the district court to resolve his constitutional

challenges. We suggested an appeal from the merits of these dismissals if he objected to

2 As a result of Jiricko’s failure to timely object to the magistrate’s recommendation regarding this claim, we ordered Jiricko to show cause why he had not waived his right to appellate review of the district court’s adoption of this recommendation under our firm waiver rule regarding untimely objections. We discuss this rule and Jiricko’s response to our order later in this decision. 4 them. Id. at 2-3. He has done so to some extent in this appeal, as we discuss in the

following sections, but there is no merit to his renewed contention that the district court

erred in failing to address the Act’s constitutionality.

B. Dismissal of Claims Against the Judicial Defendants

Jiricko’s claims against the Judicial Defendants were dismissed for failure to state

a claim under Fed. R. Civ. P. 12(b)(6), a decision we review de novo. See Khalik v.

United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). To state a claim, a complaint

must contain sufficient facts “to state a claim to relief that is plausible on its face,”

taking all well-pleaded facts, but not conclusory allegations, as true and construing

them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted); see Acosta v. Jani-King of Okla., Inc.,

905 F.3d 1156, 1158 (10th Cir. 2018). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Because Jiricko

is acting pro se, we construe his filings liberally, but do not act as his advocate. Garrett

v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

1. Claims for damages

We agree with the district judge, Jiricko failed to state a plausible claim for

damages against the Judicial Defendants because the claims are barred by judicial

immunity. A judge is immune from damage suits unless (1) the act in question “is not

taken in the judge’s judicial capacity,” or (2) “the act, though judicial in nature, is taken

in the complete absence of all jurisdiction.” Stein v. Disciplinary Bd. of Supreme Court

5 of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (internal alterations and quotation marks

omitted). Jiricko contends his claims fall within these exceptions because the state judges

improperly ruled his State Court Suit was subject to the Act. But disagreement with a

ruling does not touch upon the court’s jurisdiction or judicial capacity. His claims failed

to state a claim because they are barred by judicial immunity.

2. Claims for declaratory and injunctive relief

The district judge dismissed Jiricko’s claims for declaratory and injunctive relief

against the Judicial Defendants on alternative grounds: 1) they failed to state a claim

because they were barred by the Younger abstention doctrine,3 and 2) the Judicial

Defendants, as adjudicators, were not proper parties to defend the constitutionality of the

Utah statute. Jiricko disputes the judge’s reliance on the Younger doctrine but does not

challenge his holding that the Judicial Defendants were not proper parties. “When a

district court dismisses a claim on two or more independent grounds, the appellant must

challenge each of those grounds.” Lebahn v. Nat’l Farmers Union Unif. Pension Plan,

828 F.3d 1180, 1188 (10th Cir. 2016). Since Jiricko does not now challenge the “proper

parties” ruling, we trust it was proper. We affirm the dismissal of the claims for

declaratory and injunctive relief. See id.

3 This doctrine arises from Younger v. Harris, 401 U.S. 37 (1971). 6 C. Claims against Frankenburg Defendants

1. Section 1983 claims

To state a claim under § 1983, Jiricko was required to plead facts that, taken as

true, establish (1) he was deprived of a right secured by the Constitution or federal

law, and (2) the deprivation was caused by a person or persons acting under color of

state law. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125,

1143 (10th Cir. 2014). He failed to state a § 1983 claim against the Frankenburg

Defendants, the district judge concluded, because he did not sufficiently allege they acted

under color of state law. Jiricko disputes this conclusion because he alleges they

conspired with state actors (the Judicial Defendants) in state court to deprive him of his

constitutional rights. But “[w]hen a plaintiff in a § 1983 action attempts to assert the

necessary ‘state action’ by implicating state officials or judges in a conspiracy with

private defendants, mere conclusory allegations with no supporting factual averments are

insufficient; the pleadings must specifically present facts tending to show agreement and

concerted action.” Scott v. Hern, 216 F.3d 897, 907 (10th Cir. 2000) (internal quotation

marks omitted). The mere fact that a judge agreed with one party’s legal arguments is

not collusion. Since Jiricko failed to offer the required specific factual allegations, he

failed to state a § 1983 claim against the Frankenburg Defendants.

2. State-law claims

The district court dismissed Jiricko’s state-law claims against the Frankenburg

Defendants (abuse of process, conspiracy and intentional infliction of emotional distress)

7 because they were barred by Utah’s judicial-proceeding privilege. Under Utah law, this

privilege “presumptively attaches to conduct and communications made by attorneys on

behalf of their clients in the course of judicial proceedings.” Moss v. Parr Waddoups

Brown Gee & Loveless, 285 P.3d 1157, 1166 (Utah 2012). Jiricko did not challenge the

privilege ruling, thereby forfeiting appellate review of it.4 See Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening brief

generally forfeits appellate consideration of that issue.”)

Jiricko also waived appellate review of the district court’s dismissal of his final

claim against these Defendants (fraud on the state court); this time because he failed to

timely object to the magistrate judge’s February 6, 2018, recommendation to dismiss this

state-law claim for lack of jurisdiction. “This court has adopted a firm waiver rule under

which a party who fails to make a timely objection to the magistrate judge’s findings and

recommendations waives appellate review of both factual and legal questions.”

Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). “This rule does not

apply, however, when (1) a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object, or when (2) the interests of justice

require review.” Id. (internal quotation marks omitted).

4 Jiricko did address this privilege in his reply brief after the Frankenburg Defendants raised it in their response brief. But we do not ordinarily consider arguments raised for the first time in a reply brief. See, e.g., White v. Chafin, 862 F.3d 1065, 1067 (10th Cir. 2017) (holding party “waived [ ]his contention by waiting to present it for the first time in his reply brief”). Further, Jiricko’s argument that the Frankenburg Defendants were not acting within the scope of the judicial-proceeding privilege in the State Court Suit is conclusory and not persuasive in any event. 8 In response to our order to show cause regarding his apparent waiver, Jiricko first

claims the firm waiver rule does not apply because his objections to the magistrate

judge’s recommendation regarding his fraud on the court claim were timely under an

extension he had requested and received from the court. The record shows otherwise;

that extension granted Jiricko additional time to object to two other, earlier filed,

recommendations made by the magistrate. His objections to the magistrate’s

recommendation regarding his fraud on the court claim were untimely.

He also contends the firm waiver rule is inapplicable under the exceptions to the

rule. But our review of the magistrate judge’s written recommendation indicates it

accurately informed Jiricko he was required to file any objections to the recommendation

within fourteen days and that the failure do so “may constitute waiver of objections upon

subsequent review.” R. Vol. II at 395. His “interests of justice” argument is also

unpersuasive as it merely returns to the issue of the Act’s constitutionality, and makes no

argument about the judge’s unexceptional decision not to exercise supplemental

jurisdiction over his fraud on the state court claim once his federal and other state claims

had been dismissed. Jiricko’s other assorted arguments against application of the firm

waiver rule are also meritless. He waived appellate review of the district court’s

dismissal of his fraud on the court claim.

D. Postjudgment Motion

Jiricko also appeals from the denial of his combined Rule 59 and Rule 60(b)

motion to reopen the court’s judgment. We review this decision for abuse of discretion.

9 See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2009). The denial was not

even debatably beyond permitted discretion.5

CONCLUSION

AFFIRMED.

Entered for the Court

Terrence L. O’Brien Circuit Judge

5 Jiricko’s contention that the district court failed to rule on a portion of this motion is not supported by the record. Nor do we see anything in the record supporting his suggestion that the district and magistrate judges were biased against him and should have been disqualified. 10